FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

April 25, 2007

Elisabeth A. Shumaker

Clerk of Court

In re:
CARL ALLEN NAKAGAWA,
Petitioner.

No. 06-1473
(D.C. No. 06-CV-1189-ZLW)
(D. Colo.)

NO NAMED RESPONDENT,
Respondent.

ORDER AND JUDGMENT *

Before McCONNELL, PORFILIO, and BALDOCK, Circuit Judges.

Petitioner Carl Allen Nakagawa, proceeding pro se, appeals the order and
judgment of dismissal entered by the district court dismissing his amended
complaint without prejudice for failure to comply with the pleading requirements
of Fed. R. Civ. P. 8(a) and 10(a). Because Mr. Nakagawa has failed to allege
sufficient facts to show the existence of an actual case or controversy, we dismiss

After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

this appeal for lack of subject matter jurisdiction, and remand with instructions to
the district court to vacate its prior dismissal order and dismiss Mr. Nakagawas
amended complaint without prejudice for lack of subject matter jurisdiction.
As noted by the district court, Mr. Nakagawas liberally construed
amended complaint is vague and, for the most part, unintelligible, R., Doc. 24 at
3, and he has utterly failed to meet his burden of alleging sufficient facts on
which a recognized legal claim could be based, Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991). We also agree with the district court that Mr. Nakagawa
failed to comply with the pleading requirements of Fed. R. Civ. P. 8(a) and 10(a).
As the district court explained:
The amended complaint does not include a short and plain
statement of the grounds upon which the Courts jurisdiction
depends. See Fed. R. Civ. P. 8(a)(1). The amended complaint does
not include a short and plain statement of his claims showing that he
is entitled to relief in this action. See Fed. R. Civ. P. 8(a)(2). The
amended complaint does not include a demand for the relief
Mr. Nakagawa seeks. See Fed. R. Civ. P. 8(a)(3). The amended
complaint also fails to include in the caption to the amended
complaint the parties he is suing. See Fed. R. Civ. P. 10(a).
R., Doc. 24 at 3.
These pleading deficiencies do not just implicate Rules 8 and 10, however,
as we conclude that Mr. Nakagawa has failed to allege sufficient facts to show the
existence of a justiciable case or controversy. Consequently, the district court
should have dismissed Mr. Nakagawas amended complaint for lack of subject
matter jurisdiction, and we must likewise dismiss this appeal. See United States
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v. Wilson, 244 F.3d 1208, 1213 (10th Cir. 2001) (Under Article III of the
Constitution, federal courts have subject matter jurisdiction only over cases and
controversies.); see also Steel Co. v. Citizens for a Better Envt, 523 U.S. 83,
94-95 (1998) (The requirement that [subject matter] jurisdiction be established
as a threshold matter springs from the nature and limits of the judicial power of
the United States and is inflexible and without exception.) (quotation omitted).
Accordingly, we DISMISS this appeal for lack of subject matter
jurisdiction, and REMAND with instructions to the district court to vacate its
prior dismissal order and dismiss Mr. Nakagawas amended complaint without
prejudice for lack of subject matter jurisdiction. In addition, because this appeal
is frivolous, we DENY Mr. Nakagawas motion to pay this courts filing and
docketing fees in partial payments; we VACATE the prior order entered by this
court on January 24, 2007, assessing partial payments from Mr. Nakagawas
prison account; and we ORDER Mr. Nakagawa to immediately pay the full
appellate filing and docketing fees. Finally, we DENY Mr. Nakagawas petition
for hearing en banc.
Entered for the Court

John C. Porfilio
Circuit Judge

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